UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE

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1 Case :0-cr-00-MJP Document Filed 0/0/00 Page of Honorable Marsha J. Pechman 0 0 UNITED STATES OF AMERICA, v. UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE Plaintiff, ARTHUR MONTOUR, a/k/a SUGAR MONTOUR, PETER MONTOUR, KENNETH HILL, and NATIVE WHOLESALE SUPPLY, Defendants. No. CR 0-00 MJP MOTION TO DISMISS CHARGES AGAINST KENNETH HILL AND PETER MONTOUR BECAUSE THEY ARE NOT AMONG THE CLASS OF THOSE LIABLE FOR FAILURE TO NOTIFY NOTE ON MOTION CALENDAR: Friday, March, 00 ORAL ARGUMENT REQUESTED The definition of contraband in the CCTA, and hence the existence of federal criminal liability under the CCTA, depends totally on the predicate state law violation upon which the federal charge is based. If the state law predicate upon which this CCTA prosecution is based is inapplicable to these defendants, then all of the CCTA charges against them must be dismissed. United States v. Gord, F.d, (th Cir. ) (Because the CCTA defines contraband cigarettes by reference to state law, [a] violation of the state cigarette tax law is a predicate to a CCTA violation. ); United States v. Smiskin, F.d 0, (th Cir. 00) ( whether [defendants] transported contraband cigarettes under the CCTA turns on Washington State law ). KENNETH HILL AND PETER MONTOUR - Case No. CR 0-00 MJP 00 Central Building 0 Third Avenue Seattle, WA 0 (0) -000

2 Case :0-cr-00-MJP Document Filed 0/0/00 Page of 0 0 One of the state law predicates upon which this CCTA prosecution is based is Wash. Rev. Code..0(). It provides: () No person other than: (a) A licensed wholesaler in the wholesaler s own vehicle; or (b) a person who has given notice to the board in advance of the commencement of transportation shall transport or cause to be transported in this state cigarettes not having the stamps affixed to the packages or containers. This pre-notification statute cannot be applied against these defendants. By its terms, it places the duty to notify the Washington State Liquor Control Board upon the one who shall transport or cause to be transported in this state the unstamped cigarettes. This statute thus places the duty to pre-notify only on the direct transporter or the one who directly caused him or her to transport. This impliedly excludes other classes of defendants from bearing such an obligation. There are several rules that prompt this conclusion. First, Wash. Rev. Code..0() lists only transport[er]s in the class of people having the duty to notify. The express inclusion of this group impliedly excludes all other groups from bearing such an obligation. See, e.g., United States v. Vonn, U.S., (00) (expressio unius est exclusion alterius rule); Botany Worsted Mills v. United States, U.S., () (maxim, expressio unius est esclusio alterius means that, [w]hen a statute limits a thing to be done in a particular mode, it includes the negative of any other mode ); Jeffries v. Wood, F.d ( th Cir.), cert. denied, U.S. 00 () ( an express declaration as to one item requires the exclusion of others). If the Washington Legislature intended to exclude from liability for failure to prenotify all but the transporters, the government cannot charge others as aiders and abettors in order to avoid that Congressional limitation. It is true that, in general, one can be charged as KENNETH HILL AND PETER MONTOUR - Case No. CR 0-00 MJP 00 Central Building 0 Third Avenue Seattle, WA 0 (0) -000

3 Case :0-cr-00-MJP Document Filed 0/0/00 Page of 0 0 an aider and abettor even though he or she is not specifically included among the class of people that Congress subjected to criminal liability. United States v. Standefer, U.S. 0, n. (0). There are, however, exceptions. For example, accomplice liability will not be imposed where the legislature, by specifying the kind of individual who is to be found guilty when participating in a transaction necessarily involving one or more other persons, must not have intended to include the participation by others in the offense as a crime... even though the statue was not intended to protect the other participants. United States v. Southard, 00 F.d, -0 (st Cir), cert. denied, U.S. (). Following this rule, the Fifth Circuit declined to hold a construction company superintendent liable for the company s OSHA violations, because the detailed OSHA scheme specifically allocated liability to different entities and this employee was not among those on whom such liability fell. United States v. Shear, F.d (th Cir. ) (defendant-construction company superintendent not an employer who could be held criminally liable for the company s OSHA violations; the statute under which the superintendent was charged clearly defines employer and employee, clearly states their duties, and clearly distinguishes the subjects of liability in different sections as [a]ny person, [w]hoever, or, in the section at issue, any employer, showing an intent to subject employers but not employees to liability). Critically, that Circuit Court of Appeals continued that the supervisor Shear could not be convicted as an aider and abettor of the employer in this situation, either, to get around those statute explicitly allocating responsibility and liability. Washington s cigarette regulation statutes are just as incredibly detailed as OSHA. They also allocate responsibilities for taxes, regulations, and reporting specifically to KENNETH HILL AND PETER MONTOUR - Case No. CR 0-00 MJP 00 Central Building 0 Third Avenue Seattle, WA 0 (0) -000

4 Case :0-cr-00-MJP Document Filed 0/0/00 Page of 0 0 different people in a large chapter, Wash. Rev. Code. and accompanying regulations. Given such a complex and detailed set of statutes and regulations allocating responsibility and liability, the natural inference is that the state legislature intended that statute to be the exclusive means of allocating such responsibilities and liabilities. See Shear, F.d at ( the structure of OSHA evidences an affirmative legislative policy to leave unpunished those employees who, in their capacity as such, merely aid and abet their employer s violations of [OSHA]... by committing... the acts or conduct constituting the employer s violation. ). Accord Gebardi v. United States, U.S. () ( we perceive in the failure of the Mann Act to condemn the woman s participation in those transportations which are effected with her mere consent, evidence of an affirmative legislative policy to leave her acquiescence unpunished ). Thus, the more detailed the regulatory scheme, the less likely Congress intended that unnamed groups should be charged with the listed violations and the more likely that Congress intended liability to fall only on those specifically listed in its detailed laws. See Atlantic & Gulf Stevedores, Inc. v. Occupational, Safety & Health Review Comm n, F.d (d Cir. ). Thus, in the Shear decision above, the court explained that the OSHA enforcement scheme is directed against employers so employees cannot be sanctioned for disregarding safety standards and commission orders as follows: If we allow aider and abettor liability to be imposed in these circumstances would effectively rewrite the statute so that employer reads employer or employee or whoever or any person. This we refuse to do. Shear, F.d,. See also United States v. Amen, F.d, - (d Cir. ) ( Congress assigns guilt to only one type of participant in a transaction, it intends to leave the other unpunished for the offense ; hence, no accomplice liability under KENNETH HILL AND PETER MONTOUR - Case No. CR 0-00 MJP 00 Central Building 0 Third Avenue Seattle, WA 0 (0) -000

5 Case :0-cr-00-MJP Document Filed 0/0/00 Page of 0 0 U.S.C. for the kingpin s employees or for others who aid the kingpin, but are not among the five employees supervised, managed or organized). The indictment alleges that Mr. Hill is a shareholder and chief marketing officer of entity A, and that he received some share of NWS operating profits. (Indictment at page.) While the government also alleges that on or about 00 Mr. Hill brought an unspecified number of boxes of unstamped cigarettes to Blue Stilly for sale to the public (Indictment at page -), all of the CCTA charges allege transactions occurring after September, 00. Mr. Hill was far up the vertical chain of distribution and was not the transporter of the cigarettes into Washington. Nor did he directly cause such transport. Hence, he is not among the class of transporters upon whom the statute places the responsibility to report. Nor did Peter Montour transport cigarettes as defined by the CCTA. According to the indictment, Peter Montour s involvement with the alleged scheme was limited to the fact that he: () instructed NWS employees to operate out of the Bosque Farms, New Mexico warehouse that previously had been used by Turtle Island (Indictment at ); () opened a bank account in New Mexico on behalf of NWS (Indictment at ); and () met with Mona Robley in Canada to discuss her serving as the NWS distributor operating the Bosque Farms warehouse (Indictment at ). Even assuming, arguendo, those allegations are true, the Indictment fails to allege any duty that would obligate Peter Montour to report cigarette shipments to Washington regulators. KENNETH HILL AND PETER MONTOUR - Case No. CR 0-00 MJP 00 Central Building 0 Third Avenue Seattle, WA 0 (0) -000

6 Case :0-cr-00-MJP Document Filed 0/0/00 Page of 0 0 be dismissed. Therefore, all of the CCTA charges against Kenneth Hill and Peter Montour should DATED this th day of February, 00. Respectfully submitted, s/ Jeffery P. Robinson JEFFERY P. ROBINSON 0 Third Avenue, Suite 00 Seattle, WA 0 Phone: (0) -000 Fax: (0) -0 robinson@sgb-law.com s/ Colette Tvedt COLETTE TVEDT 0 Third Avenue, Suite 00 Seattle, WA 0 Phone: (0) -000 Fax: (0) -0 tvedt@sgb-law.com Counsel for Defendant Kenneth Hill BRACEWELL & GIULIANI LLP s/ Marc L. Mukasey Marc L. Mukasey, pro hac vice Philip J. Bezanson, pro hac vice Avenue of the Americas, th Floor New York, NY 00- Phone: () 0- Fax: () - marc.mukasey@bgllp.com phil.bezanson@bgllp.com KENNETH HILL AND PETER MONTOUR - Case No. CR 0-00 MJP 00 Central Building 0 Third Avenue Seattle, WA 0 (0) -000

7 Case :0-cr-00-MJP Document Filed 0/0/00 Page of Lance Wyrill Behnke BRACEWELL & GIULIANI, LLP 00 Fourth Avenue, Ste 00 Seattle, Washington - Phone: (0) -0 Fax: (0) -0 lance.behnke@bgllp.com Counsel for Defendant Peter Montour 0 0 CERTIFICATE OF SERVICE I hereby certify that on February, 00, I electronically filed the foregoing with the Clerk of the Court using the CM/ECF system, which will send notification of such filing to Mary K. Dimke, J. Tate London, and Richard E. Cohen, Assistant United States Attorneys, and all other parties and counsel of record using the CM/ECF system. s/ Andrea Crabtree ANDREA CRABTREE Paralegal SCHROETER GOLDMARK & BENDER crabtree@sgb-law.com KENNETH HILL AND PETER MONTOUR - Case No. CR 0-00 MJP 00 Central Building 0 Third Avenue Seattle, WA 0 (0) -000